GIR Live: UWOs are “largely symbolic”

Lawyers should watch out for a provision in the UK Criminal Finance Act which allows law enforcement officials to freeze assets held in UK bank accounts, an audience at GIR Live London heard on 26 April.

Speaking at GIR Live Question Time at the 4th annual conference in London, David Corker at Corker Binning said that while the Criminal Finances Act’s (CFA) provisions about Unexplained Wealth Orders and the new offence of failure to prevent the facilitation of tax evasion have grabbed the headlines, it’s another section that’s worth looking out for.

He said that litigation will focus on section 16 of the CFA, which allows authorities such as the UK Serious Fraud Office (SFO) and the National Crime Agency (NCA) to ask a magistrate to freeze assets if there are reasonable grounds to suspect money held in a local bank is intended for unlawful conduct.

Corker added: “It offers an easy means by which law enforcement can freeze and potentially seize enormous sums of money,” he said.

“If there are 20 quite big ones, there’s room for those orders to make a big impact,” she said.

Lipworth said that UWOs are particularly “scary” because if an individual wants to contest an order, any information they submit to do so can be used by the authority that obtains the order and other authorities in subsequent investigations.

The judges made the remarks in a judicial review case brought by AL, a former employee of XYZ, who has been charged with conspiracy to bribe and conspiracy to corrupt and wants the written notes of the interviews to prepare for his defence. The SFOsaid in October 2017 it would take no further action against XYZ, which refused – before and after it obtained the DPA – to hand over interview notes, stating these were privileged. Though the judges ultimately tossed out AL’s judicial review, they criticised the SFO for allowing XYZ’s claim of privilege to go unchallenged, even though the authority clearly disagreed with it.

“I do think it’s a very interesting case and in light of where we are with LPP [legal professional privilege] it’s rather inconsistent,” Lipworth said.

Overall, the panellists were highly critical of the SFO’s approach to the case, with Gentle stating that the authority was “slack and a little bit lazy”.

Proudlock said that going forward, the SFO must think carefully about how it balances the pragmatism of cooperating with companies with its duty in proceedings against individuals.

New director: new direction?

The panellists spent a great deal of time discussing priorities for the successor to former SFO director David Green. Green’s tenure as director ended on 20 April. He has been replaced in the interim with the SFO’s chief operating officer, Mark Thompson. Following a Private Eye article published in early April, Green’s successor is said to be Lisa Osofsky, a US lawyer and UK barrister who is the managing director and head of investigations at consultancy company Exiger in London. Osofsky previously worked at consulting company Control Risk between 2006 and 2013, and was the deputy general counsel at the FBI between 1996 and 2000.

During the discussion, an audience member asked how the legal community, if the rumours are true, will cope with an American at the head of the SFO. Robertson said that there will inevitably be tensions, but that a healthy balance will be struck. “My feeling is she will be able to handle this well,” Robertson said.

Corker said that though he doesn’t know her, he believes that Osofsky will make the SFO “less British and more aggressive”. Corker also speculated that Osofsky will be more receptive to claims of privilege than Green was, in line with US authorities’ approach to privilege in corporate investigations.

The panellists said that Osofsky’s priority should be to maintain Green’s legacy, and to ensure consistency across the SFO to speed up investigations.